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2019 DIGILAW 1396 (KAR)

Maruti v. Annappa Basappa Kumbar

2019-06-24

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. The claimant and owner being aggrieved by the judgment and award dated 27.03.2015 passed in MVC No.392/2014 by the Fast Track Court and Member Additional Motor Accident Claims Tribunal, Gokak have filed these appeals. 2. It is the case of the claimant before the Tribunal that on 18.02.2014 at about 9 a.m., the petitioner as a pillion rider on the motorcycle bearing Registration No.KA23/EB 3828 proceeded from Byakud Village towards Raibag in a moderate speed. When the motorcycle was proceedings near Shreenagar cross, at that time TATA Ace motor vehicle bearing No.KA23/A 2283 came from Raibag side in a rash and negligent manner and dashed to the petitioner. Due to the said impact, the petitioner sustained grievous injuries. He was treated by Dr. M.G.Umarani at Ganga Surgical and Fracture Clinic, Gokak. He has spent Rs. 1,00,000/- towards medical expenses. Prior to the accident, the claimant was aged about 50 years and used to earn Rs. 6,000/- p.m. by doing agricultural work. Therefore claimed compensation against the driver, owner and insurer of the offending vehicle. 3. In pursuance of notice, respondents No.1 to 3 appeared before the Tribunal. Respondent No1. filed written statement denying the averments made in the claim petition and further contended that the vehicle has been insured with respondent No.3. Respondent No.2 having valid driving licence, respondent No.3 is solely liable to pay compensation. Respondent No.2 adopted the written statement filed by respondent No.1. Respondent No.3 filed written statement denying the entire averment made in the claim petition. He contended that the accident in question was due to the negligence on the part of the petitioner and therefore the owner and insurer of the motorcycle are necessary parties. The driver of the insured vehicle was not holding valid and effective driving licence to drive the said vehicle and therefore there is breach of policy condition and as such he is not liable to pay compensation. He has specifically contended that respondent No.2, the driver was having licence of LMV (NT) and the vehicle is light goods vehicle and therefore, he had no driving licence. 4. On the basis of the pleadings of the parties, the Tribunal framed issues. 5. The claimant in support of his claim petition got examined himself as PW1 and one witness as PW2 and got marked 29 documents at Ex.P1 to P29. 4. On the basis of the pleadings of the parties, the Tribunal framed issues. 5. The claimant in support of his claim petition got examined himself as PW1 and one witness as PW2 and got marked 29 documents at Ex.P1 to P29. Respondent No.3 has got examined his official witness as RW1 and got marked 2 documents at Ex.R1 and R2. 6. Learned member of the Tribunal after hearing both the parties passed the impugned judgment awarding compensation of Rs. 2,67,850/- with interest at 6% p.a. from the date of petition till its realization. Respondent No.1- owner of the vehicle is directed to deposit compensation amount. 7. Respondent No.1 being aggrieved by the impugned judgment has filed MFA No.102223/2015 on the ground that the driver of the offending vehicle had valid driving licence to drive the vehicle involved in the accident and therefore, the liability saddled against the owner is liable to be set aside and the insurance company be directed to pay compensation. He has further contended that the insurance policy was in force and therefore, he cannot be penalized. 8. The claimant being dissatisfied by the impugned judgment has filed MFA No.102660/2015 seeking enhancement on the ground that the Tribunal has considered his income on a lower side and that the compensation awarded under other heads is also on a lower side. 9. Heard the learned counsel for the parties. 10. A short question which arise for consideration before this Court is, as to whether the appellant-owner has made out grounds to set aside the liability saddled against him and fasten on the same insurer and whether the claimant has made out grounds for enhancement of the compensation amount. 11. The learned counsel for the appellant-owner of the offending vehicle submitted that in view of the judgment of the Hon'ble Supreme Court in the case of Mukund Dewangan v. Oriental Insurance Company Limited, (2017) AIR SC 3668, there is no breach of policy conditions on the ground that the driver of the offending vehicle did not posses a valid and effective driving licence. 12. Admittedly the driver of the offending vehicle possessed driving licence to drive LMV (NT) vehicle and in view of the judgment in the case of Mukun Dewangan stated supra, there is no necessity of obtaining special endorsement for driving LMV transport vehicle which is the vehicle involved in the case. 13. 12. Admittedly the driver of the offending vehicle possessed driving licence to drive LMV (NT) vehicle and in view of the judgment in the case of Mukun Dewangan stated supra, there is no necessity of obtaining special endorsement for driving LMV transport vehicle which is the vehicle involved in the case. 13. The Tribunal held that the driver of the offending vehicle did not possess a valid and effective driving licence to drive the class of the vehicle involved in the case and that the driver was holding valid and effective driving licence to drive LMV (NT) vehicle only and therefore there is breach of policy condition and as such the insurer was exonerated and liability was saddled against the owner of the vehicle. In the judgment in the case of Mukund Dewangan stated supra the Hon'ble Supreme Court has held as follows: "(iv) The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect." 14. Therefore in the present case, since the driver of the offending vehicle had a valid driving licence to drive LMV (NT) vehicle, the same holds good for driving the LMV Transport vehicle involved in the case. Therefore, there is no breach of policy condition as contended by the insurer. 15. Under these circumstances, the impugned judgment exonerating the insurer and fastening liability on the owner of the vehicle is liable to be set aside and the insurer shall be made liable to pay compensation awarded in the claim petition. Therefore, the appeal filed by the owner deserve to be allowed. 16. The learned counsel for the claimant submitted that the Tribunal has considered the income of the claimant at Rs. 5,000/- p.m., which is on a lower side. The claimant has contended that he was earning Rs. 6,000/- p.m. by doing agricultural work. However, in the absence of any positive evidence to prove his income, the Tribunal has considered his income at Rs. 5,000/- p.m., which is on a lower side. The claimant has contended that he was earning Rs. 6,000/- p.m. by doing agricultural work. However, in the absence of any positive evidence to prove his income, the Tribunal has considered his income at Rs. 5,000/- p.m. Considering the age, avocation of the claimant and also the year of the accident, it is just and necessary to consider the income of the petitioner at Rs. 6,000/- p.m. as claimed by him for the purpose of awarding compensation. 17. The Tribunal has properly considered the permanent disability at 16% of the whole body. However, the Tribunal has applied multiplier 9 in assessing the loss of future earning capacity instead of 11. Therefore, it is necessary to assess the loss of future income due to disability by applying multiplier 11. On such reassessment, the following just compensation is awarded: Pain and suffering Rs. 50,000.00 Medicine and hospital charges Rs. 91,450.00 Nourishment charges Rs. 2,000.00 Attendant and conveyance Rs. 10,000.00 Loss of income during treatment period Rs. 10,000.00 Loss of future income Rs. 1,26,720.00 Loss of amenities, future happiness Rs. 25,000.00 TOTAL Rs. 3,15,170.00 18. Thus the claimants are entitled in total compensation of Rs. 3,15,170/- as against Rs. .2,67,850/- awarded by the Tribunal. 19. The point for consideration is answered accordingly. In the result, this Court proceed to pass the following: ORDER MFA No.102223/2015 is allowed. The judgment and award dated 27.03.2015 passed in MVC No.392/2014 by the Fast Track Court and Additional MACT, Gokak, so far as exonerating the insurer and fastening the liability on the owner is set aside. It is ordered that the owner and insurer are jointly and severally liable to pay compensation. The insurer is directed to deposit the compensation before the Tribunal within a period of eight weeks. The amount of compensation deposited by the appellant in this appeal shall be refunded to him. MFA No.102660/2015 is allowed in part. The claimant is awarded compensation of Rs. 3,15,170/- with interest at 6% p.a. from the date of petition till realization. The order as to deposit and disbursement of the compensation amount shall be in terms of the order of the Tribunal.